The opinion of the court was delivered by: Richard Mills, U.S. District Judge
We deal here with a judgment of forfeiture of various firearms seized by the Government.
The Claimant asks that the judgment of forfeiture be set aside, on the basis that the Government did not comply with the statutory requirements.
The Claimant's request is denied.
Claimant Donna Fleischli alleges that on August 11, 1998, federal agents seized 75 firearms from the home she shared with her husband, Joseph Fleischli, at 1119 South MacArthur, Springfield, Illinois. Other items were seized from Mr. Fleischli's business at 1905 East Washington, Springfield, Illinois. Mr. Fleischli is a convicted felon.
The Claimant alleges that on October 16, 1998, she timely filed a claim as to the seized property. On May 20, 1999, she was informed that the claim and cost bond had been approved and were being forwarded to the United States Attorney. This civil forfeiture action in rem was filed in this Court on February 18, 2000. The complaint alleged that pursuant to 18 U.S.C. § 924(d)(1), the forfeiture of numerous items was being sought for Mr. Fleischli's violation of 18 U.S.C. § 922(g)(1), which prohibits possession of firearms by a felon. The Court ordered various items forfeited.
The Claimant filed a notice of appeal of this Court's judgment. On July 31, 2004, the Seventh Circuit affirmed the Court's judgment of forfeiture. The Claimant's petition for rehearing en banc was then denied.
On May 2, 2005, the United States Supreme Court denied a timely filed petition for a writ of certiorari.
The Claimant has moved pursuant to Federal Rule of Civil Procedure 60(b) to set aside the judgment of forfeiture on the basis that it is void for lack of subject matter jurisdiction because the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA") applies to this case.*fn1
CAFRA was enacted on April 23, 2000 and became effective on August 23, 2000. Pursuant to CAFRA, the Government must commence either a non-judicial forfeiture (administrative) or a judicial forfeiture within 60 days after the seizure of the property. See 18 U.S.C. § 983(a)(1)(A). The Claimant notes that CAFRA further provides, "Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims or return the property pending the filing of a complaint." 18 U.S.C. § 983(a)(3)(A). If the Government has not complied with the requirements of CAFRA, it "shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense." 18 U.S.C. § 983(a)(3)(B).
The Claimant contends that based on the foregoing, after 90 days has passed since a claim was filed, the Court loses subject matter jurisdiction and cannot order that property be forfeited to the United States, unless the Government has obtained a criminal indictment containing an allegation that the property is subject to forfeiture and taken the necessary steps to preserve its right to maintain custody of the property, as provided in the forfeiture statute. The Claimant alleges that in the case sub judice, the complaint for forfeiture was not filed within 90 days of the filing of the claim. Instead, the complaint was filed approximately sixteen months after the claim was filed and about nine months after the cost bond was perfected. Moreover, the Claimant contends the Government did not obtain a criminal indictment before the time for filing a complaint expired.*fn2 Consequently, the Claimant asserts that the Court lost subject matter jurisdiction to forfeit the property on the effective date of CAFRA.
The Claimant alleges that pursuant to Landgraf v. USI Film Products, 511 U.S. 244, 273 (1994), this Court should "apply the law in effect at the time it renders its decision, even though that law was enacted after the events that gave rise to the suit." (internal quotations and citations omitted). However, the Supreme Court in Landgraf recognized that "the presumption against retroactive legislation is deeply rooted in our jurisprudence." Id. at 265. The Government asserts that because the forfeiture proceeding was ...